Plan B Earth skeleton argument for Heathrow legal Appeal in October – that Grayling’s designation of the NPS was unlawful
The legal challenge by Plan B Earth is one of the four that will be heard at the Appeal Court from the 17th October. They have published their skeleton argument, which says, in summary that on 27th June 2019, the UK carbon target was amended by statutory instrument to read “at least 100%” cut by 2050 (ie. net zero) rather than the previous target of an 80% cut. Plan B say the “Secretary of State [Grayling] proceeded on the false premise that the Paris Agreement on Climate Change and the Government’s commitment to introducing a net zero carbon target in accordance with the Paris Agreement were “irrelevant” considerations for the purposes of s.5(8) of” the 2008 Climate Change Act. And the Secretary of State “chose to ignore these developments and proceeded as if there had been no material developments in government policy relating to climate change since 2008 and as if no change were in contemplation.” And “The basis of the Appellant’s claim that the designation of the ANPS was unlawful, and that it should be quashed, is that the Secretary of State approach to these matters was fundamentally flawed.”
Plan B Skeleton Argument
The summary states:
Nb. At the time of drafting the original Grounds of Appeal, The Climate Change Act 2008 s. 1 maintained a “carbon target” of reducing greenhouse gas emissions by at least 80% by 2050 compared to a 1990 baseline. On 27 June 2019 that target was amended by statutory instrument to read “at least 100%”. The Grounds of Appeal have been revised in this skeleton argument in order to reflect that amendment.
1. The Appellant wishes to challenge the Secretary of State’s decision ([CB/x/y] and [CB/x/y]) to designate the Airports National Policy Statement (“the ANPS”) in support of the expansion of Heathrow Airport under the Planning Act 2008 (“the 2008 Act”), on the basis of his failure to give proper consideration to “government policy relating to … climate change” contrary to the statutory requirement of s. 5(8) of the 2008 Act.
2. Specifically the Secretary of State proceeded on the false premise that the Paris Agreement on Climate Change and the Government’s commitment to introducing a net zero carbon target in accordance with the Paris Agreement were “irrelevant” considerations for the purposes of s.5(8) of the 2008 Act.
3. Since climate change is a global threat, which no one country can tackle in isolation, national climate change policies are determined as contributions to maintaining a global climate change temperature limit. The final report of the Airports Commission highlighted the importance of the global climate change context as a constraint on UK aviation capacity [CB/x/y]: “Any change to UK’s aviation capacity would have to take place in the context of global climate change, and the UK’s policy obligations in this area.”
4. In July 2015, when the Airports Commission report was published, the political consensus was that extreme danger from climate change could be avoided by limiting average global warming to 2˚C above pre-industrial levels. It is common ground between the parties that the now superseded “carbon target” in the Climate Change Act 2008 (“CCA”), which was to reduce UK greenhouse gas emissions by at least 80% by 2050 compared to 1990 levels, was derived from that 2˚C global limit.
5. In December 2015, however, the Paris Agreement on Climate Change (“The Paris Agreement”) introduced a step change to global (and hence national) climate change policy. Amid gathering evidence that even 2˚C warming would pose intolerable risks for humanity, the UK Government played a leading role in negotiating the Paris Agreement on Climate Change, which committed governments to holding warming to “well below” 2˚C while aiming for a 1.5˚C limit.
6. In March 2016 the Government made an unequivocal policy commitment to introduce a new “net zero” carbon target to bring the UK into line with the Paris Agreement 1. A “net zero” target means emissions reduction of 100% as opposed to 80%. Such a target does not require actual emissions of carbon to be reduced to zero. It means only that remaining emissions must be balanced by action to remove an equivalent amount of carbon from the atmosphere (eg through reforestation).
7. In April 2018 the Government announced it would commission the Committee on Climate Change (“the CCC”), the Government’s statutory adviser on climate change, to provide formal advice on the implementation of a new target 2; and on 1 May 2018, the Rt Hon Claire MP, on behalf of the Government, informed Parliament that the CCC had been asked to advise on how to reach “net zero” emissions by 2050 3.
8. The Government’s position aligned to an emerging consensus that, if the Paris temperature limit were to be maintained, global emissions would need to reach net zero by 2050. In January 2018, for example, the European Parliament had voted for net zero emissions by 2050 4.
9. Thus at the time of the Secretary of State’s designation of the ANPS, in June 2018, it was already clear that:
(1) it was Government policy to introduce a new net zero carbon target in accordance with the more stringent Paris Agreement temperature limit;
(2) that that target would be substantially more ambitious than the minimum level of 80% set out in the CCA at the time; and
(3) that the new target was likely to be 100% emissions reduction by 2050.
10. In the context of a long term national infrastructure project, such as the proposed expansion of the UK’s national airport, it would have been sensible to have considered these profound developments in government policy on climate change. The Secretary of State should at least have turned his mind to the question of whether the ANPS was likely to be compatible with the more stringent target that was envisaged.
11. The Secretary of State, however, chose to ignore these developments and proceeded as if there had been no material developments in government policy relating to climate change since 2008 and as if no change were in contemplation. He proceeded on the basis that the seminal Paris Agreement and the Government commitment to introduce a net zero target in line with that agreement were “irrelevant” to government policy on climate change and hence irrelevant to his decision.
12. The basis of the Appellant’s claim that the designation of the ANPS was unlawful, and that it should be quashed, is that the Secretary of State approach to these matters was fundamentally flawed.
13. The short-sightedness of his approach has been highlighted by subsequent events.
14. The judgement of the Court below was published on the morning of 1 May 2019.
15. On 2 May 2019, the CCC published its advice on a new carbon target, as requested by the Government, recommending the introduction of a net zero target by 2050, in accordance with the Government’s stated intention of May 2018 [SB/x/y].
16. On 27 June 2019, the CCA s.1 carbon target of at least 80% emissions reduction by 2050 was replaced, via statutory instrument, with the substantially more ambitious target of “at least 100%” by 2050 (ie a “net zero” target) [SB/x/y].
17. The Secretary of State must now concede that the benchmark used to assess the ANPS was fundamentally less demanding than current government policy on climate change: current government policy is to reduce emissions by at least 100% by 2050 in accordance with a global temperature limit of “well below 2˚C” and 1.5˚C.
18. Presumably, the Secretary of State will say that at the time of the designation of the ANPS, in June 2018 he could not have predicted these “developments” in Government policy.
19. In truth, while Government policy was not implemented into law until June 2019, the policy commitment to introduce a new net zero target in accordance with the Paris Agreement had been made in March 2016 and by May 2018 it was already clear that the Government was aiming to decarbonise the economy by 2050. It was not sensible for the Secretary of State to ignore that position.
20. In any event, it is now apparent that contrary to the express purpose of the 2008 Act, Government policy on aviation and climate change are now advancing in contrary directions. In the Appellant’s submission, this is the inevitable consequence of the Secretary of State’s blinkered approach.
21. The Court below ruled in favour of the Secretary of State on the basis that “neither policy nor international agreement can override a statute”. In reality there was no question of “overriding” a statute, since the CCA, prior to amendment, imposed only a minimum requirement in terms of emissions reduction. Further, the express terms of s. 5(8) of the 2008 Act required the Secretary of State to take account of government policy and not to confine his consideration to the statutory minimum obligation.
…….. and the document continues (15 pages) at
What will be the impact of the UK ambition of “Net Zero” on the Airports NPS?
Lawyers, BDB Pitmans, for whom airport planning is an area of work, have commented on the change by the UK to a net zero carbon target by 2050 – and its effect on the aviation sector. They say the 1990 baseline was 778 million tonnes of CO2. With the 80% cut target, until 27th June, the UK had to cut CO2 emissions to 155.6 million tonnes by 2050. It now has to be reduced to 0 tonnes. The government understands that: “Achieving net-zero GHG emissions for the UK will rely on a range of Speculative options that currently have very low levels of technology readiness, very high costs, and/or significant barriers to public acceptability.” One change that will be needed is for people to fly less. The legal challenges in March 2019 against the Airports NPS had grounds relating to carbon emissions, but these were dismissed, on the basis of developments like the Paris Agreement had not yet being translated into UK law. Now the Appeal Court will hear the legal challenges, and as the CO2 target has been changed, presumably the conclusions of the NPS are now vulnerable. The Sec of State for Transport will need to review the NPS, considering whether there has been a “significant change in any circumstances.”